On the A-Rod Arbitration

Notwithstanding the tone
of my last post, I do intend to continue to post on occasion and will urge the
folks at nj.com to enlist some new blood for the blog.

Alex Rodriguez's arbitration was a sordid topic to begin with, but it's just plain ugly as neither side seems to be aware of a place called the "high road." Yesterday, Rodriguez released a very critical statement of MLB and Bud Selig, alleging that MLB engaged in "gross, ongoing misconduct" in investigating Rodriguez and that Selig "again is turning a blind eye, knowing that crimes are being committed under his regime." For Rodriguez's part, I get it. He has nothing to lose, his reputation is already in the mud, so why not be aggressive in the hope of achieving some sympathy in the court of public opinion? But then came this response from MLB's Chief Operating Officer (and potential next Commissioner), Rob Manfred:

"This latest, sad chapter in Mr. Rodriguez's tarnished career is yet
another example of this player trying to avoid taking responsibility for
his poor choices. Given the disappointing acts that Mr.
Rodriguez has repeatedly made throughout his career, his expressed
concern for young people rings very hollow. Mr. Rodriguez's use of PEDs
was longer and more pervasive than any other player, and when this
process is complete, the facts will prove it is Mr. Rodriguez and his
representatives who have engaged in ongoing, gross misconduct."

Really?! This does not reflect well on MLB and plays right into Rodriguez's attempts to paint MLB as petty and over-zealous in pursuing a personal vendetta against him. If MLB has the goods on Rodriguez then there's no reason to descend to Rodriguez's level; they can just sit back with confidence that the process will validate their evidence and procedures. To go so far as to say that "Rodriguez's use of PEDs was longer and pervasive than any other player" seems to have taken the discourse well into hyperbole. How can an MLB officer make that kind of comment given how MLB turned a blind eye to PED use for years? But I digress...

I believe Manfred's response is indicative of MLB being legitimately flustered by the strategy of Rodriguez's legal team. Some (such as Michael Kay during his radio show last night) may question whether Rodriguez's allegations have any bearing on the outcome of the arbitration and characterize them as feeble attempts to distract from the real issues. This may be the lawyer in me, but I think this view misses the boat. The arbitration isn't simply a question of "did he or didn't he," but an inquisition of MLB's evidence and tactics. Before Biogenesis, most of us probably believed that MLB's steroid policy was simple: a player has a positive urine test, a player is suspended. It's a simple yes or no bright line. However, with the Biogenesis players, the evidence is not based on a positive test but on documentation and witnesses. Consequently, there is no clear bright line and it begs the questions of what documentation and testimony is credible and sufficient to establish a player's guilt and what means can MLB employ to
obtain its evidence. For example, can MLB employ extra-judicial processes and perhaps
even pay or
offer other incentives to witnesses, as MLB seems to have done in Rodriguez's case? Essentially, how far can MLB go to obtain incriminating evidence against its players?

Additionally, we already know from MLB's first attempt to suspend Ryan Braun that an arbitrator will consider the process, with chain of custody being a big issue. In Braun's case, he overcame a decided positive test because the tester did not follow protocol, thus compromising the chain of custody. If an actual positive test can be dismissed in those circumstances, what then of documentary evidence that
may be years old and originated from an individual, Anthony Bosch, who has a dubious
reputation at best and who received significant incentives from MLB to provide evidence? It's of no small consequence that one of Rodriguez attorneys, David Cromwell, represented Braun. Rodriguez's team knows that MLB's process is susceptible to attack, particularly in this case.

Basically, Rodriguez's allegations that MLB engaged in misconduct have everything to do with the arbitration. From a legal perspective, the strategy of Rodriguez's team is quite deft,
and if Rodriguez gets off entirely, it likely will not be because the evidence showed he didn't use PEDs, but because he undermined the sufficiency and credibility of the evidence, including MLB's process in obtaining the evidence. MLB thus should be worried because this decision could set a precedent for how MLB pursues players that have not tested positive under the drug testing policy.

In retrospect, MLB probably should have just given Rodriguez the same 50 game suspension it gave the other 13 players (except Braun, who got 65). The fact that each of those players accepted the suspension gives credibility to the evidence MLB obtained from Biogenesis (though the majority of the players are fringe Major Leaguers or minor leaguers and thus don't have Rodriguez's means to thoroughly challenge MLB). But in singling out Rodriguez through administering a penalty that appears arbitrarily above and beyond what was collectively bargained, MLB has invited this scrutiny and ugliness upon itself. Again, this might be the lawyer in me, but unless MLB has concrete evidence that is decidedly damning against Rodriguez beyond just PED use, I believe it is unlikely that the 211 suspension game will stand (I'm betting on a reduction). MLB will be undone by its own zeal and capriciousness, just as Rodriguez is alleging, and it will not look good for MLB.